KRISTEN CARDELL v. PATRICK KIRBY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1398-07T31398-07T3

KRISTEN CARDELL,

Plaintiff-Appellant,

v.

PATRICK KIRBY,

Defendant-Respondent.

____________________________

 

Submitted September 29, 2008 - Decided

Before Judges Winkelstein and Gilroy.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FD-16-1393-07.

Scott J. Bocker, attorney for appellant.

Kasowitz, Benson, Torres & Friedman LLP, attorneys for respondent (Jennifer Falstrault, on the brief).

PER CURIAM

Plaintiff Kristen Cardell appeals from the October 5, 2007 order of the Family Part determining defendant Patrick Kirby's child support obligation for the parties' daughter. We affirm.

Defendant resides in the State of New York with his wife and two children. Commencing in February 2006, the parties dated after defendant became estranged from his wife. However, the parties neither resided together, nor shared expenses. In September 2006, the parties ceased dating. One child was born of the parties' relationship, a daughter born in November 2006. Subsequent to the birth of the child, defendant resumed residing with his family in New York.

On December 5, 2006, plaintiff filed a complaint for custody of the parties' daughter and for child support. Plaintiff also filed a motion seeking an order compelling defendant: to pay child support of $4,000 per week; to reimburse plaintiff for 95% of all uninsured pre-natal medical expenses ($4,182.85), 95% of all clothing and baby supplies she purchased in contemplation of their daughter's birth ($4,403), and 95% of their daughter's future uninsured medical expenses, after plaintiff pays the first $250 per year; to maintain a life insurance policy on his life in the amount of $7,500,000, with the parties' daughter designated as the beneficiary and plaintiff named as her trustee until such time as their child is emancipated; and to limit his parenting time to one day a week and to every other weekend at plaintiff's home.

In March 2007, after service of the complaint and notice of motion, defendant began making child support payments of $2,600 per month. Defendant opposed the motion seeking: to limit his child support obligation to $2,600 a month; to limit his obligation to pay for their daughter's unreimbursed healthcare expenses to 85%, with plaintiff paying 15%; proof of payment of items plaintiff purchased in anticipation of their child's birth, over and above those items he already paid; and to limit the amount of life insurance on his life to $250,000, with the option to reduce the amount on an annual basis. Defendant neither contested custody, nor sought parenting time. The parties argued the motion on July 26, 2007, and the court reserved decision.

On August 3, 2007, Judge Freid rendered an oral opinion setting defendant's child support obligation at $2,793 a month, retroactive to the date of filing of the complaint. In addition, the judge also directed defendant to: 1) pay $200 per month into a college savings account, with defendant serving as the custodian or trustee; 2) pay 90% of the child's "unreimbursed reasonable and necessary and non-elective medical, dental, ophthalmologic, optometric, and prescription medicine expenses for [the parties' daughter] in excess of the first $250 per year of such expenses"; 3) maintain health insurance for the benefit of the parties' daughter, if such coverage is available to defendant through employment; and 4) maintain a $750,000 term life insurance policy on defendant's life for the benefit of their daughter through emancipation, with plaintiff named as trustee. A confirming order was entered on October 5, 2007.

In reaching his decision, the trial judge reasoned:

The case is what [is] typically known as a high income case. That is one not controlled by the child support guidelines. Appendix 9-f of those guidelines in the Court rules is entitled schedule of child support awards. And it only goes to a maximum of $4,420 combined net weekly incomes, between the biological parents.

And the combined [minimum] support amount to be awarded up to that point is five hundred and twelve dollars for the applicable year, apportioned between the parties based upon [their] percentage shares of the total net earnings. Appendix 9-f specifically states both for cases in which the combined net incomes of the parties is more [than] $4,420, the child support award at the figure, at $4,420 represents the [minimum] basic support order.

And the Court must add a discretionary amount of child support to the [minimum] basic award based on the factors specified in [N.J.S.A.] 2[A]:34-23. . . .

The issue for the Court to determine then is by what amount it should increase defendant's basic [minimum] order by applying the New Jersey annotated [N.J.S.A. 2A:34-23] factors with the needs of the child as the paramount in threshold factor as far as the Court is concerned. The Court has decided that the only fair and reliable measure of the parties['] incomes to use in considering this matter, is what we do know in point of fact based upon their full year 2006 tax return[s], since matters for the calend[a]r year 2007, appear to be influx and may be very different going forward by the end of this year for both parties.

The defendant has voluntarily left his previous employment for a job which appears to be at a base salary of $325,000 per year, but his target incentives for additional earnings are $307,000 with a "range of up to $690,000" and he . . . "could receive up to $500,000." These are from plaintiff's [E]xhibit A in her submission.

So there is no [way for] this Court . . . to reasonably predict defendant's full 2007 annual income. Meanwhile, the plaintiff herself may be unemployed as of August the 31st, 2007 unless she secures new employment. But even if unemployed, she would be eligible apparently also based upon the submissions for what's called a transition payment from her current employer, separation pay, out-placement services, and free or reduced health care for a period of time up to six months. These are from plaintiff's Exhibit B.

There's no way to determine how long if at all the plaintiff might be unemployed nor what her replacement might be, up or down until she is reemployed, if she became unemployed. Using the 2006 tax return figures. The [c]ourt determines that plaintiff grossed $86,923. And $70,000 net of taxes, or $1,346 net of taxes weekly. The defendant in 2006 grossed $698,915, including the Court [determining] joint unearned income of approximately $25,000 a year with his wife.

The wife [is presently] unemployed and the unearned income is indicated by the tax return to be joint, meaning available to both parties. The [c]ourt therefore has determined to include it in the computations. His net of tax figure according to the return is $482,936, or $10,633 weekly.

Plaintiff[,] therefore, according to the Court's determination, earns 12.7 . . . percent of their combined net income [and] defendant 87.3 percent of their combined net income[,] based upon the [2006] figures. Clearly, then their combine[d] net incomes far, far exceed the maximum on the child support guidelines of $4,420 weekly, on which the "basic child support amount under the guidelines," is $512 weekly shared proportionately by the parties in the proportion indicated above or $447 by the defendant, $65 by the plaintiff.

Additional factors, however, which the Court needs to consider, are the weekly child care of $200 a week. And although the figures seem to be in conflict, the matter seems to be so inconsequential that I don't think it[']s at all crucial. Approximately $12 weekly in medical insurance premiums. These[] additional charges would raise the total child support amount under the guidelines if they were applied that way to $724 and defendant's 87.3 percent proportionate share, to a weekly child support order of $632 weekly.

The Supreme Court approved guidelines state[d] in [A]ppendix 9-F, the Court [must] add a discretionary amount under the factors [in N.J.S.A. 2A:]34-23. It appears clear to the Court that all of the child's reasonable needs are being [met] at this time under the current voluntary payments by the defendant. The child is only nine months old.

The child is living in the apartment of the mother which she evidently considered appropriate to her own life[]style[,] and all the child's daily needs for food, shelter, clothing, medical care, health insurance, day care services are currently being [met]. . . .

After reaching his determination that defendant was obligated to pay child support in the amount of $632 a week, the judge considered, but rejected, plaintiff's request that defendant pay additional child support based not on the child's needs at time of the hearing, but rather based on defendant's income. The judge then considered the factors contained in N.J.S.A. 2A:34-23a and added the sum of $75 per month or $17.50 per week to defendant's child support obligation to pay a portion of plaintiff's loan that was required to renovate her apartment to accommodate the parties' daughter. That amount, when added to the original child support obligation of $632 per week, brought defendant's weekly child support obligation to $649.50 or $2,793 a month. It is from this determination that plaintiff appeals.

On appeal, plaintiff argues "[t]he trial court committed reversible error and abused its discretion when it improperly established inadequate child support." We disagree.

"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Accordingly, a trial court's decision of a party's child support obligations is discretionary and entitled to deference, absent an abuse of discretion, lack of support in the evidence, or misapplication of controlling legal principles. See Tash v. Tash, 353 N.J. Super. 94, 99 (App. Div. 2002); Cox v. Cox, 335 N.J. Super. 465, 473 (App. Div. 2000); Rolnick v. Rolnick, 262 N.J. Super. 343, 359-60 (App. Div. 1993).

Generally, except in those rare cases where the trial court disregards the Child Support Guidelines, Caplan v. Caplan, 364 N.J. Super. 68, 85 (App. Div. 2003), aff'd, 182 N.J. 250 (2005), where the parents' combined annual net income exceeds the maximum threshold contained in the guidelines, the court, in determining an appropriate child support award, shall apply the guidelines up to the threshold amount and then supplement the guidelines-based award with a discretionary sum based on the remaining family income and application of the statutory factors contained in N.J.S.A. 2A:34-23a, Isaacson v. Isaacson, 348 N.J. Super. 560, 581, certif. denied, 174 N.J. 364 (2002); see also Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-F to R. 5:6A (2009).

In determining whether to supplement the guidelines-based award with a discretionary amount, a trial court's decision is informed by the following general principles. "Both parents have a shared obligation to support their children." Strahan v. Strahan, 402 N.J. Super. 298, 306 (App. Div. 2008). That duty is a continuous obligation. Caplan, supra, 364 N.J. Super. at 90. "[W]here the parties have the financial wherewithal to provide for their children, the children are entitled to the benefit of financial advantages available to them." Isaacson, supra, 348 N.J. Super. at 579. Stated another way, "[c]hildren are entitled to not only bare necessities, but a supporting parent has the obligation to share with his [or her] children the benefit of his [or her] financial achievement." Id. at 580.

When a court's attention "is focused on the unique circumstances of the high-income earner whose ability to pay increased child support is not in issue, the dominant guideline for consideration is the reasonable needs of the children, which must be addressed in the context of the standard of living of the parties." Id. at 581 (emphasis added). "The consideration of needs must include the age and health of the children - with the understanding that infants' needs are less than those of teenagers - as well as any assets or income of the children." Strahan, supra, 402 N.J. Super. at 307. In determining a child's needs, trial courts are to be vigilant, but not overindulgent. Isaacson, supra, 348 N.J. Super. at 583.

Accordingly, "a balance must be struck between reasonable needs, which reflect lifestyle opportunities, while at the same time precluding an inappropriate windfall to the child," id. at 582, or to the custodial parent. Id. at 584. "[T]he law is not offended if there is some incidental benefit to the custodial parent from increased child support payments." Ibid. However, the law is offended when the custodial parent overreaches in the name of the benefiting child. Id. at 585. It is against these standards that we review the trial court's decision.

We have carefully considered plaintiff's argument in light of the record and applicable law. We conclude that the argument is without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge Freid in his comprehensive opinion of August 3, 2007. R. 2:11-3(e)(1)(A). Nevertheless, we add the following comments.

Plaintiff does not argue with the trial court's methodology in determining defendant's child support obligation, that is, by first determining each party's respective share of their combined net income; by applying the guidelines to the parties' initial $229,840 of their combined net income; apportioning that amount between the parties pursuant to their respective shares of the combined net income; and then applying the N.J.S.A. 2A:34-23a factors to determine whether defendant should pay additional child support. Rather, plaintiff contends that the court erred in its application of the N.J.S.A. 2A:34-23a factors. Plaintiff asserts that the court erred by failing to recognize that the amount of expenses declared in her December 2006 Case Information Statement only represented what she could then afford, "at a time when defendant was not paying support." Plaintiff also contends that the court erred by not considering the lifestyle that her daughter is entitled to, based on defendant's significant earnings. We disagree.

We are satisfied that the trial judge correctly determined defendant's child support obligation based on the information before the court at the time of the motion. In making his decision, the judge determined that plaintiff earned 12.7% and defendant 87.3% of the parties' 2006 combined net income. Concluding that the parties' 2006 combined net income exceeded the threshold $4,420 weekly amount under the guidelines, the judge applied the guidelines to the initial $229,840 of the combined net income and determined that the amount of support required under the guidelines was $512. The judge apportioned that amount between the parties, directing that plaintiff pay $65 per week, and defendant pay $447 per week. The judge next applied the N.J.S.A. 2A:34-23a factors and determined that defendant should pay additional child support, raising his obligation to $649.50 per week, or $2,793 per month.

In addition, we are satisfied that the trial judge properly rejected plaintiff's contention that defendant should pay additional child support because of his significant income. At the time the motion was argued, the parties' daughter was nine months old. The trial judge concluded that ordering defendant to pay $2,793 child support per month, together with maintaining health and dental insurance for the child, paying 90% of the child's unreimbursed medical, dental and prescription expenses, contributing $200 a month into a college savings account, and maintaining a life insurance policy of $750,000, sufficiently addressed the needs of the nine-month-old child.

We find no abuse of the trial judge's discretion in setting defendant's child support obligation. Accordingly, we affirm the order of October 5, 2007, without prejudice to plaintiff reapplying for an increase in defendant's child support obligation based on a showing of changed circumstances warranting the requested relief. Isaacson, supra, 348 N.J. Super. at 579. Such changes in circumstances may include a reduction in plaintiff's income, as well as an increase in the child's needs as she matures; for example, an increase in plaintiff's living accommodations to accommodate herself and her daughter, school tuition, summer camps, or an increase in money for a teenager's clothing and incidentals. Id. at 582-83.

Affirmed.

Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A (2009). Appendix IX-F, in effect at time of the motion, set the child support combined net income threshold amount at $4,420 per week or $229,840 annually. At that threshold combined net income amount, the guidelines set the child support award for one child at $512 per week.

We note that plaintiff represents in her April 14, 2008 letter brief that she was terminated from her employment with Citigroup in Manhattan shortly after the motion was heard and remained unemployed until March 2008, "when she took a job in [New Jersey], earning significantly less than she earned working for Citigroup."

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A-1398-07T3

December 31, 2008